Privacy Issues in the Workplace

an employee’s right to privacy. Please refer to Section 4 for a detailed discussion concerning the circumstances under which a government employer may require a drug test.

H. F ITNESS FOR D UTY E XAMINATIONS This section outlines the authority of an employer to require a current employee to undergo medical and/or psychological examinations for purposes of determining the employee’s “fitness for duty.” Under the ADA and the FEHA , an employer may require an employee to undergo a medical examination (and/or inquiry) if it is job-related and consistent with business necessity. 212 According to the Interpretive Guidance issued by the EEOC, the above rule permits employers to require a fitness for duty exam, when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 213 [Please also note that there is a document published by the EEOC entitled “Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act.” ]

Moreover, the courts have upheld a public employer’s right to conduct fitness for duty examinations. In the words of the Ninth Circuit Court of Appeals:

“The government clearly has a valid concern with the productivity and stability of its work force. Citizens rightly expect the government to operate as effectively and efficiently as it can, given the diverse tasks with which it is charged. The government cannot operate with any degree of efficiency if its employees miss work…. Regular performance of [an employee’s] work is a prerequisite for… most if not all full-time governmental jobs.” 214

1. W HEN I S A F ITNESS FOR D UTY E XAMINATION A LLOWED ? According to the Ninth Circuit Court of Appeals, “ when health problems have had a substantial and injurious impact on an employee’s job performance, the employer can require the employee to undergo a physical examination designed to determine his or her ability to work, even if the examination might disclose whether the employee is disabled or the extent of any disability .” 215 The Sixth Circuit Court of Appeals has stated the test this way: “for an employer’s request for an exam to be upheld, there must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.” 216

A good rule of thumb to follow is not to request an employee undergo a fitness for duty examination unless you have specific evidence: 1) that an

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